JUDGMENT This is a tenant’s petition against the order of the appellate court allowing the release application. The facts leading to the filing of the present writ petition is that the landlord filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (hereinafter referred to as ‘the Act’) for release of shop no. 310, Garhi Cantt., Dehradun, which was in the tenancy of the petitioner-tenant since 1944. The landlord contended that he has three sons, namely, Deepak Kumar, Rakesh Kumar and Rajiv Kumar and that all have completed their studies and that the second son Rakesh Kumar was settled and was doing business on his own and that the landlord required the shop in question to settle his sons Deepak Kumar and Rajiv Kumar to set up an electronics goods shop in the premises in question. 2. The application was resisted by the tenant-petitioner and contended that the application was not maintainable since the premises in question was let out for business as well as for commercial purposes. The tenant-petitioner submitted that front portion was let for business purpose and the back portion, consisting of two rooms, was being used for residential purpose from the very inception and, therefore, the application for release was not maintainable under the third proviso to Section 21(1)(a) of the Act. The tenant-petitioner further contended that the bona fide need for the two sons Deepak and Rajiv did not exist in as much as Deepak Kumar was running a Flour Mill at 246 Garhi Cantt., Dehradun in the name and style of “Deepak Rice and Flour Mill” and further that the second son Rajiv Kumar was doing business of a general merchant under the name and style of “Subhash Provision Store” at 246, Garhi Cantt., Dehradun. Not only this, the tenant-petitioner contended that the landlord had another property at 62 Nimbuwala in Garhi Cantt. where a number of shops were lying vacant and, in a portion of 62 Nimbuwala, Garhi Cantt. The second son of the landlord was carrying on a business under the name and style of “Agarwal Auto and Service Centre”. The tenant also contended that the landlord had another shop at 246-A Garhi Cantt., Dehradun which could be utilized for setting up the business for the two sons. The tenant-petitioner further contended that the premises nos. The second son of the landlord was carrying on a business under the name and style of “Agarwal Auto and Service Centre”. The tenant also contended that the landlord had another shop at 246-A Garhi Cantt., Dehradun which could be utilized for setting up the business for the two sons. The tenant-petitioner further contended that the premises nos. 307, 308 & 309 which are in the shape of three shops adjacent to the tenant’s shop were vacant and were arbitrarily demolished for the purposes of construction of a shopping complex which could have been utilized by the landlord to set up the business for his two sons. In the light of the aforesaid, the tenant contended that there was no bona fide need and the shop could not be released. It was further submitted that the tenant-petitioner was more than 70 years old and has no other place to go and therefore comparative need was more in his favour than in favour of the landlord who has several other accommodations. 3. The Prescribed Authority, after considering the material on record, rejected the application of the landlord under Section 21(1)(a) of the Act holding that there was no bona fide need of the landlord for setting up the business for his two sons. The Prescribed Authority found that the two sons were not employed but were gainfully engaged in business and were income tax payees, therefore, the need for setting up the business for the two sons did not exist and that there was no requirement for the shop in question for the two sons. The Prescribed Authority also took note of the fact that the adjoining shops were demolished by the landlord which could have been utilized for setting up the business, if any. The Prescribed Authority, consequently held that the comparative hardship was more in favour of the tenant than in favour of the landlord. 4. The landlord, being aggrieved, filed an appeal and, during the pendency of the appeal, parties filed additional evidence. One such fact that was brought by the tenant was the allegation that two sons of the landlord, namely, Deepak Kumar and Rajiv Kumar had opened a Showroom of Kinetic Vehicles under the name and style of “Varun Auto” at Maya Plaza in Dandi Garhi Cantt., Dehradun and consequently, again submitted that the landlord had no bonafide need. One such fact that was brought by the tenant was the allegation that two sons of the landlord, namely, Deepak Kumar and Rajiv Kumar had opened a Showroom of Kinetic Vehicles under the name and style of “Varun Auto” at Maya Plaza in Dandi Garhi Cantt., Dehradun and consequently, again submitted that the landlord had no bonafide need. On the other hand, the landlord brought in a judgment of the Civil Court in Suit No. 65 of 1995 whereby the suit for permanent injunction filed by the tenant against the landlord was dismissed. 5. It would be relevant to mention here that the three shops adjoining the shop in question which are alleged to have been demolished by the landlord were again being constructed for a shopping complex by the landlord. A passage leading to the back portion of the tenant’s residential area was dug up for the purpose of the construction of the shopping complex. The tenant filed a suit for injunction alleging that the passage was the only ingress to his residential portion and the digging of the passage would debar him from entering the residential portion. A temporary injunction was granted restraining the landlord from digging up the passage or using it for construction purposes. On the basis of this injunction, the landlord’s plan to make a shopping complex came to an end. Eventually, the suit filed by the tenant was dismissed. 6. In appeal, the Appellate Court found that the contention of the tenant-petitioner that the premises in question was let out for residential as well as for non residential purposes was incorrect and that the tenant-petitioner could not file any proof to show that he was using the premises not only for his business purposes but also for residential purposes. The Appellate Court concluded that in the absence of any evidence being filed by the tenant, it could not be said that a portion of the building was being used for residential purpose. The Appellate Court concluded that the entire premises was being used for commercial purposes and held that the third proviso to Section 21(1)(a) of the Act was not applicable. The Appellate Court further found that the application of the landlord for the release of the property could not be dismissed merely because the two sons became income tax payees during the pendency of the litigation. The Appellate Court further found that the application of the landlord for the release of the property could not be dismissed merely because the two sons became income tax payees during the pendency of the litigation. The Appellate Court found that the two sons of the landlord were unemployed at the time when the application for release of the accommodation was filed and, that during the pendency of the litigation, the two sons started part time business in order to survive and, on that count, became income tax payees. The Appellate Court, consequently, concluded that merely because the two sons became gainfully employed during the pendency of the litigation and became income tax payees, would not mean that the bonafide need had come to an end and that the bona fide need could still be considered. 7. On the question of bona fide need, the lower appellate court found that the landlord himself was running a Flour Mill and that the mere fact that the Flour Mill was being run in the name and style of Deepak Rice and Flour Mill did not mean that the Flour Mill was being run by his son Deepak. The lower appellate court further found that the business of Subhash General Store was being maintained by the landlord as a proprietor and was not being run by the landlord’s son Rajiv Kumar. The lower appellate court further found that the landlord’s son Rakesh Kumar was running his business from the entire premises of 62 Nimbuwala, Garhi Cantt., Dehradun and there was no vacant shop which can be used or utilized by the landlord to set up the business for other two sons. The lower appellate court further found that the shop no. 246-A did not belong to the landlord but was owned by the landlord’s brother and that the shop no. 246 Garhi Cantt. was not being managed or run by Deepak and Rajiv. The lower appellate court found that Deepak Kumar was doing the business of LIC and Mutual Funds and that his other son Rajiv Kumar was surviving by doing tuition and that such part time occupation did not erode their need for setting up a permanent business and that said occupation was only a stop gap arrangement. The lower appellate court found that Deepak Kumar was doing the business of LIC and Mutual Funds and that his other son Rajiv Kumar was surviving by doing tuition and that such part time occupation did not erode their need for setting up a permanent business and that said occupation was only a stop gap arrangement. In the light of the aforesaid finding, the lower appellate court concluded that the landlord had a genuine bona fide need to set up a business in order to settle his sons Deepak and Rajiv Kumar and that the landlord had no other accommodation where he could settle his two sons. 8. The lower appellate court further found that the shopping complex which was to come up, came to a stop because of the injunction obtained by the tenant-petitioner and the complex could not be constructed on account of the injunction and, in any case, since the shops no longer existed, the same could not be considered for the need of the landlord’s sons. 9. The lower appellate court also concluded that the premises were being used for business purposes. On the other hand, the lower appellate court further found that the tenant-petitioner was a widower and was not residing in the premises in question but was living with one of his sons in a huge residential property where there were a number of shops, which were also lying vacant. The lower appellate court concluded that if the tenant-petitioner wants to carry on his business, he can do the same from these vacant shops. The lower appellate court consequently concluded that since no effort was made by the tenant in making himself available another shop, the comparative hardship was more in favour of the landlord than in favour of the tenant. The lower appellate court consequently found that there was a bonafide need in favour of the landlord and comparative hardship was more in favour of the landlord than in favour of the tenant and also found that the dominant usage of the premises was commercial and consequently allowed the appeal and released the premises by granting two years’ rent as adequate compensation to the tenant for the release of the property in question. 10. The petitioner, being aggrieved by the said order, has filed the present writ petition. 11. 10. The petitioner, being aggrieved by the said order, has filed the present writ petition. 11. Heard Sri V.K. Kohli, learned Senior Counsel assisted by Sri I.P. Kohli, the learned counsel for the petitioner and Ms. Anjali Noliyal, the learned counsel for the respondent-landlord. The learned counsel for the petitioner has raised the same argument that was raised before the Trial Court, namely, that there was no bonafide need for the landlord and that there was sufficient accommodation with the landlord which could have been used for setting up the business for his two sons. The learned counsel submitted that the sons of the landlord were income tax payees and they were employed and consequently there was no requirement for the shop in question. The learned counsel for the tenant-petitioner stressed that the petitioner is an old widower nearing 80 years of age and at the fag end of his life he should not be ousted from the premises, which had become his own home for the last 60 years. The learned counsel submitted that he has no other place and there would be injustice if he is made to vacate the premises at the twilight of his life. The learned counsel for the petitioner-tenant stressed upon the fact that the shops adjoining to shop of the petitioner were deliberately demolished so that the present application under Section 21(1)(a) could be filed and that the ulterior purpose of evicting the petitioner-tenant was to construct a shopping complex, since the petitioner’s shop was coming in its way. In support of his submission, learned counsel relied upon a decision in 1995 (2) ARC (2) (Smt. Vimla Talwar Vs. Additional District Judge/Special Judge, Meerut and others), in which it was held that where a roof had caved in did not mean that the accommodation had been wiped out. The Court in that case held that the roof could be repaired and the accommodation could be utilized and in that scenario the release of the accommodation was rejected. 12. During the hearing of the petition, the Court directed the parties to come to some amicable compromise, since allegations and counter allegations were being made with regard to the extent of vacant accommodation, which each party possesses. 12. During the hearing of the petition, the Court directed the parties to come to some amicable compromise, since allegations and counter allegations were being made with regard to the extent of vacant accommodation, which each party possesses. The learned counsel for the landlord submitted that the landlord is willing to give an appropriate compensation to the tenant to vacate the premises since the landlord has no other accommodation, which could be given to the tenant. On the other hand, this offer of compensation was rejected by the tenant, who insisted that another shop be given or if the shopping complex was reconstructed, one shop should be given to him. Since the negotiation failed, the matter was heard on merit. 13. After hearing the parties at some length and upon perusing the impugned orders passed by the Prescribed Authority as well as the appellate court and upon perusing the averments made in the writ petition and the affidavits filed before this Court, an irresistible conclusion is drawn that a clear case of bona fide need for the two sons is made out. The question of release of the application would not have been arisen if the tenant had not filed the suit for injunction. Till that stage, parties were living peacefully and there was no animosity between the landlord and tenant. According to the landlord, the three shops, which were adjacent to the premises in question, were old and in a dilapidated condition and fell down on its own. According to the tenant, the landlord deliberately demolished the said shops. Whatever may have been the cause, the fact remains that the three shops no longer existed and the landlord started the process of reconstruction. It is alleged that a shopping complex was to come up in that place. There is a passage next to the three shops, which is alleged to have been used by the tenant for using his residential portion, which is behind the shop in question. The tenant filed a suit for injunction and obtained an interim injunction, as a result of which, the landlord could not construct the complex. The aforesaid facts are not disputed. As a result of the injunction, the landlord turned his guns and filed a release application against the tenant for the release of the shop to settle his sons, since he could not construct the shop in question. The aforesaid facts are not disputed. As a result of the injunction, the landlord turned his guns and filed a release application against the tenant for the release of the shop to settle his sons, since he could not construct the shop in question. Eventually the suit of the tenant has been dismissed against which an appeal has been preferred which is still pending consideration. 14. In the light of the aforesaid, if the suit had not been filed by the tenant, the shopping complex would have been constructed and in all probability the two sons would have been settled but fate intervened, and the injunction order obtained by the tenant made the landlord turn around to file the release application. 15. The Court finds that from the evidence that was led by the parties, the lower appellate court has given a conclusive finding of fact with regard to the bonafide need of the landlord for setting up the business for his two sons. This Court finds that the finding arrived at is based on findings of fact and on appreciation of evidence, which are neither perverse and this Court is not inclined to interfere since it does not find any perversity in it. On the other hand, the lower appellate court further found that the landlord had no other accommodation except the premises in question where he could settle his two unemployed sons. No evidence has been filed by the petitioner before this Court to prove that the finding of the lower appellate court is perverse. 16. Further, the lower appellate court, on the basis of the statement of the witnesses of the tenant, has given a categorical finding that the petitioner is not residing in the premises in question and, in fact, is residing with his son in a palatial house. The lower appellate court further found that the land in which this house has been constructed belonged to the petitioner which he transferred to his daughter-in-law after the institution of the application for the release of the premises in question. The lower appellate court further found that there were a number of shops in that premises which are lying vacant and in which the petitioner could continue his business if he was so interested. The lower appellate court further found that there were a number of shops in that premises which are lying vacant and in which the petitioner could continue his business if he was so interested. The lower appellate court concluded that not only the need of the landlord was proved but the comparative hardship was in favour of the landlord and not in favour of the petitioner-tenant. The finding that the petitioner is residing with his son has not been agitated by the petitioner in this writ petition. Thus, the said finding is conclusive and cannot be disturbed. 17. In view of the aforesaid, the contention of the petitioner-tenant that the premises was partially being used for residential purposes and therefore, the application under Section 21(1)(a) of the Act for the release of the residential building for commercial purposes could not be allowed, is patently erroneous. The Court is of the opinion that since the petitioner-tenant was not residing coupled with the fact that no proof was filed to show that the petitioner-tenant was using the back portion of the premises for residential purposes, consequently, the bar for the release of a residential premise for commercial purpose could not be invoked in the present case. 18. In the light of the aforesaid, the Court finds that the order of the lower appellate court cannot be disturbed. However, the Court finds that the lower appellate court granted two years’ rent as compensation for the release of the shop. It has come on record that the rent is Rs. 35/- per month and two years rent would come to Rs. 780/-. This amount, in the opinion of the Court, is wholly insufficient. Considering the facts and circumstances, this Court, consequently, modifies the order of the appellate court to the extent that the landlord will pay a sum of Rs. 20,000/- as compensation to the petitioner-tenant for the release of the shop in question. This amount of Rs. 20,000/- will be deposited by the landlord before the Prescribed Authority within four weeks from today. 19. In view of the aforesaid, the writ petition, being devoid of merit, is dismissed. The petitioner is, however, granted time till 31st October, 2010 to vacate the premises in question. The amount so deposited by the landlord can only be withdrawn by the petitioner-tenant after he vacates the premises in question.